64 Vt. 52 | Vt. | 1891
delivered the opinion of the court.
The constitution of this state provides in Chap. I, Art. 2, that “whenever any person’s property is taken for the use of the public, the owner ought to receive an equivalent in money.” The orator claims that his land has been taken by the defendant for the use of its road. The defendant denies it. Whether it has taken and is now using it, is the question before us upon the report of a special master.
The defendant’s road was constructed by the Lamoille Yalley Railroad Company about the year 1876, and the taking of the orator’s land, if there was a taking, was at that time. The defendant took possession of the road in July 1880, and is not liable in respect of the acts of the Lamoille Yalley Railroad Company unless it has taken possession of or used the lands taken by the latter company. There are three pieces of land which the orator claims were taken by the Yalley company, and are now in the possession and use of the defendant; viz : one piece lying easterly from his store, on the opposite side, but within the limits of the highway, another piece lying north of his store, between it and a highway on its northerly side, and a third piece in the highway east of, and contiguous to, his store. These pieces are shown by the exhibit called the Tucker plans.
The orator complains that another piece of his land has been taken. When the road was built in 1816, after passing the store of the orator on its easterly side, it intersected an established highway running east and west on^the northerly side of the store, and which at a point northeasterly from the store turned abruptly to the north, and after the intersection the railroad was built upon the highway running northerly. The highway from the point of intersection with the railroad for some distance northerly was taken by the railroad company, its road-bed constructed thereon, and a substitute for the highway so taken was surveyed
The orator insists that he is entitled to damages under that part of s. 3370 R. L. which reads as follows:
“ "When a railroad corporation in laying out, building, grading or making its roads obstructs the travel or means of access to a manufactory, mill, place of business or dwelling house, the*63 corporation shall be liable to pay to the person thereby injured such reasonable compensation as the commissioners for determining railroad damages deem proper.” The allegations in the bill are specific that by the construction of the defendant’s road and crossing, the travel and means of access to the orator’s store were cut off and obstructed. The facts reported by the master fully sustain the allegations in the bill, and such damages for such obstruction as are proper should be awarded the orator.
The orator complains of another injury; the master finds that the construction of the road-bed obstructed the flow of surface water from the easterly to the westerly side of the track lying opposite the orator’s store ; that the Lamoille Valley Railroad Company constructed a culvert to permit the surface water to pass from the east or upper side of the road-bed to the lower side, near the orator’s store, and in so doing, and as a result of making the culvert, caused the water which before that time had flowed upon the surface of the land to collect and be discharged in a body upon the orator’s land west of the highway. A person is not liable for injuries resulting from the escape of surface water in its ordinary and natural courses, but he has no right to change the course of its natural escape by means of an embankment or otherwise; and if he does, he is liable for the damages that ensue,. Nor can he by means of drains, ditchesj or culverts, throw the surface water from his own land upon the land of another to the injury of the latter. . The defendant did not make the culvert, but it has taken and is using the property of which the culvert is a part and the construction of which rendered the culvert necessary. It is therefore liable for such damages as the orator sustained by reason of the construction of the culvert, as of the time it took possession of the road in July, 1880, and the damages should be assessed as of that date.
For the orator’s property thus taken he is entitled to and “ ought to receive an equivalent in money.” The rule as to damages*is stated in R. L. s. 3359, which, in similar .cases, pro
We hold the defendant liable in the five following respects:
1. As to so much of the easterly margin of the highway, east of and opposite the store, as is used or embanked .upon as a part of the road-bed or support thereof.
2. As to the strip of land north of and between the orator’s store and the highway used and embanked upon as a part of the railroad crossing.
3. As to so much of the highway east of and adjoining the store as is embanked upon and used as a part of the railroad crossing.
1. As to the culvert under the road-bed.
5. As to the obstruction of travel and means of access to the store.
The report of the master does not show the amount of damages to which the orator is entitled in respect of the five items for which we hold the defendant liable.
The elements of the damages are so commingled, including those resulting from the ordinary running of the defendant’s trains and some, in other respects, to which we think the orator is not entitled, that it is impossible to determine the damages from the facts reported. The cause must be remanded and the damages ascertained by a master whose findings -should be specific in respect of each of the five items, and upon the comingin of his report the court is directed to pass a decree for the orator that the defendant is indebted to the orator in the amount of such damages with costs, and directing their payment, and that the orator may have execution for the same. That payment of
The pro forma decree is reversed and cause remanded with mandate.
The reporter has been unable to obtain this plan.-